Opinion of the Court
In this case the petitioner calls upon us to review the convening authority’s exercise of discretion in deferring sentence to confinement under Article 57(d), Uniform Code of Military Justice, 10 U.S.C. § 857(d). We
The salient facts are not in dispute. Included in the appellant’s sentence, following his general court-martial conviction, was confinement at hard labor for five months.1 The day after trial, through his military defense counsel, the appellant in writing requested that the convening authority defer this confinement, urging that there was no evidence of an inclination of the appellant to flee; that he possessed substantial personal property in the community; that his offenses were not violent ones; that his profession of medicine made recurrence of the offenses unlikely and that the appellant had responsibility for his six-year-old daughter as well as extensive financial obligations. Four days later the convening authority denied the request. In a letter to the appellant he advised him that “deferment of confinement would not serve the best interests of the United States Air Force.”
Article 57(d) provides the following:
(d) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in his sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
Unfortunately, however, no guidelines regarding standards for evaluation of the convening authority’s exercise of discretion are found either in this statute or elsewhere in the Uniform Code of Military Justice. Furthermore, no official is designated to establish standards governing exercise of the convening authority’s discretion. We are not persuaded that “sole discretion” is absolute and unreviewable. Rather, we are impelled by our judicial responsibility to conduct a review of the convening authority’s action to determine whether he has abused his discretion.
This view reflects agreement with Judge Perry’s rationale as expressed in his dissent to our denial of a petition for extraordinary relief in Corley v. Thurman, 3 M.J. 192 (C.M.A.1977). Now that the question is properly before us, we acknowledge the force of his argument regarding proper exercise of the convening authority’s discretion.
However, we believe the proper standard for our review in this instance to be that of the American Bar Association:
(b) Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice. In making this determination, the court should take into account the nature of the crime and length of sentence imposed as well as the factors relevant to pretrial release.
ABA Standards, Criminal Appeals § 2.5(b) (1970).2
In the instant case, a bald-faced pronunciamento from the convening authority denying deferment as not “in the best interests of the United States Air Force” is insufficient in light of propounded assertions regarding the accused submitted with the request to the convening authority. The staff judge advocate’s advice to the convening authority (as suggested in the record) that a denial was warranted in that officers should be treated no differently from enlisted men and that justice should be swift is strictly irrelevant under the standard we have now laid down for the convening authority.
All of appellant’s offenses were nonviolent in nature. During an extensive pretrial investigation, no attempt to flee was evidenced. This California medical doctor had no prior conviction and was in control of a minor daughter and substantial personal property. These details were asserted in the request to the convening authority and tip the balance in favor of the accused’s release. Thus, under the facts of this case, we conclude that the convening authority abused his discretion in failing to grant appellant’s request for deferment of the confinement.
However, in this case, the issue is moot; therefore, we decline relief. See United States v. Sitton, 5 M.J. 394 (C.M.A.1978).
The decision of the United States Air Force Court of Military Review is affirmed.
1.
Captain Richard G. Brownd was found guilty of a charge and two specifications of violating Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and a charge and specification of violating Article 92, UCMJ, 10 U.S.C. § 892. He was, in addition to the confinement, sentenced to dismissal, a fine of $5,000 and forfeiture of all pay and allowances. The convening authority approved the findings and sentence as adjudged. The Court of Military Review affirmed the sentence.
2.
See contra, Bail Reform Act (18 U.S.C. §§ 3141-52).